There is extensive coverage of the legal scrum leading up to Arizona's Tuesday night execution, as well as British press coverage of the possible source of sodium thiopental.
"High Court Split Paves Way for Arizona Execution," is the title of Tony Mauro's post today at National Law Journal.
The eleventh-hour court dispute stemmed in part from the shortage of sodium thiopental, an ingredient in the "cocktail" of drugs typically used in lethal injections in the United States. The sole U.S. manufacturer has stopped production, but Arizona obtained the drug from a foreign source. The state resisted requests for details about the sourcing by attorneys for Landrigan, citing a state law that protects the privacy of individuals and entities involved in executions.
Without that information, Landrigan asserted that the use of a drug from a source not approved by the Food and Drug Administration created the risk of serious pain during the execution, in violation of the Eighth Amendment. Judge Roslyn Silver of the U.S. District Court in Phoenix agreed and stayed the execution, stating that without the information she was "left to speculate" whether the foreign drug would cause pain and suffering. The state appealed, and a panel of the 9th U.S. Circuit Court of Appeals upheld the stay.
In its opinion (pdf) the 9th Circuit said that because of uncertainty about the information about the drug that the district judge had before granting the stay, "we cannot say the district court abused its discretion." The ruling also implied that the state's reticence left defendant Landrigan unable to meet his burden under the Supreme Court's 2008 decision in Baze v. Rees to establish that a "substantial risk of serious harm" might stem from using the drug.
But the high court, in its order late Tuesday night (pdf) vacating the stay, turned that uncertainty to the state's advantage. The unsigned order, quoting from the Baze precedent, said "speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness or needless suffering.' ... There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."
"Supreme Court OKs Foreign Lethal Injection Drug," by Nina Totenberg for NPR.
Tuesday's execution, the state's first since 2007, puts an end to a case that is remarkable in many respects. The Supreme Court ruled three years ago that Landrigan was not entitled to any further hearings on his case because, as Justice Clarence Thomas put it for a 5-to-4 majority, there was "no evidence that would change the result" in his case.
Since then, however, DNA evidence not tested at the time of trial seems to exclude Landrigan from the bloody fight that ended in the victim's death, though Landrigan does not dispute that he was there. The judge who sentenced Landrigan to death has testified she would not have imposed the death penalty had Landrigan's lawyer presented doctors' reports and evaluations that showed, at the time of trial in 1990, that Landrigan suffered from fetal alcohol syndrome and brain injuries.
Also this week, an Arizona Clemency Board considered the Landrigan case. Board Chairman Duane Belcher, an 18-year veteran, said Landrigan's case was not among the worst of the worst, and that the board indeed had considered parole for some prisoners whose crimes were worse.
"I don't, at this point, see this as a death penalty case," Belcher said at the hearing.
The board, however, deadlocked 2-to-2 on clemency for Landrigan, and a tie meant the execution went forward.
"Justices not convinced by arguments to delay execution," by Joan Biskupic and Kevin Johnson for USA Today.
Other lawyers who follow capital punishment said it appeared to be the first time any state relied on an overseas drug maker.
"This is the first time that we've been aware of that this drug has been imported," said Fordham University law professor Deborah Denno, an expert on capital punishment law.
A nationwide shortage of sodium thiopental, the so-called knock-out drug that is one of the three parts of the common lethal injection mix, has threatened to block executions in Oklahoma and Kentucky. New supplies are not likely to be available until 2011.
In Texas, which operates the nation's busiest death chamber, Department of Criminal Justice spokesman Jason Clark says the state has an adequate supply of the drug to carry out its one remaining execution this year Dec. 1 and its next one Jan. 11, 2011.
KALW-FM's Informant column has, "What the Arizona execution means for the death penalty nationwide." It's by Rina Palta.
Elisabeth Semel, Director of UC-Berkeley’s Death Penalty Clinic, says that the issue of where these drugs are coming from is not going away, so long as the domestic supply of FDA-certified sodium thiopental remains scarce. However, raising the question in court will not be easy. And executions that have already been scheduled are not likely to be delayed on this issue.
What previous cases have made clear, and yesterday’s order made clearer, Semel says, is that the majority of this Supreme Court believes that the standard for stopping an execution, even temporarily, is very, very high. Specifically, for a challenge that brings up 8th Amendment issues–which means the idea of cruel and unusual punishment–a federal court can’t stay an execution unless an execution is sure or very likely to cause serious illness and needless suffering. (Media accounts indicate that Landrigan appeared to be unconscious during his execution.)
That doesn’t mean this legal standard applies outside of the context of a stay of execution–in general, someone could still challenge the use of non-FDA-approved drugs in an execution. They just better do it before a death warrant has been issued or their execution is scheduled.
Semel says, that’s the challenge with cases like these–questions like these don’t generally come up until an execution is imminent and then any questions raised during the run-up to an execution evaporate from the legal system once that person’s been executed. So now, to re-ignite the debate in the court system, an inmate on death row in a state like California or Arizona, where the origin of sodium thiopental is unknown, would have to sue and say that their constitutional rights are potentially violated if the drug is used.
But any lawsuit would have to fit into an odd window: it’d have to be before an execution date was set for the inmate, but the inmate would also have to convince the judge that his or her execution would likely involve the drugs in question. Because it’s unclear how long the shortage of sodium thiopental will last, or whether states will continue to seek supplies from abroad once the domestic supply is replenished. And the judge would have to be convinced that the individual bringing the lawsuit would or could be personally affected by the issue at hand. “It’s a double bind,” Semel says.
The Guardian reports, "British firm denies exporting drug for Arizona execution," by Owen Bowcott and Chris McGreal.
The British manufacturer of a drug used in the execution of an Arizonian man this week has said it had no control over how its anaesthetic was used once it was sold to medical suppliers, amid calls for tighter regulation of the export of drugs used to carry out the death penalty.
Archimedes Pharma UK, based in Reading, the only British firm to make the drug, denied knowingly providing it for use prior to the lethal injection of a convicted murderer on Tuesday.
Richard Dieter of the Death Penalty Information Centre in Washington said that the British government should act to prevent the "outsourcing" of the death penalty after Arizona's attorney general said his state obtained the batch of sodium thiopental from a British manufacturer because of a shortage in the US.
The anaesthetic was used to knock out the condemned man, Jeffrey Landrigan, before two other drugs that killed him were administered.
California is also planning to use a batch of sodium thiopental apparently imported from the UK in an execution that was put on hold last month, it has emerged.
Archimedes Pharma, a specialist in supplying pain relief, is the only licensed manufacturer of sodium thiopental in Britain, according to the Medicines and Healthcare Products Regulatory Agency (MHRA). The company denied it had exported the drug itself.
"The company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies," it said.
Archimedes said that once the drug entered the complex chain of medical supplies it would not have known where it was eventually sold. "Consistent with applicable regulations, the company does not have information on specific end purchasers or users of its products. The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product," it said.
"British company link to drug used in execution," is by Robert Verkaik in the Independent.
The suspected source of the drug used in the execution of death-row prisoners in the US has been identified as a British company in Berkshire.
Archimedes Pharma – which is based in Reading and describes itself as a "fast-growing specialty pharmaceutical business marketing a portfolio of products to specialist prescribers" – confirmed last night that it did produce the drug sodium thiopental. But it denied it was involved in the export of the drug to the United States.
The company's directors are now under pressure to disclose the identity of all third parties that may have supplied the state of Arizona, which yesterday used a lethal injection to put to death the convicted murderer Jeffrey Landrigan.
And:
In a statement issued last night, the British company said: "Archimedes Pharma holds a marketing authorisation for sodium thiopental, an anaesthetic licensed in the UK for general anaesthia and other indications. The company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies.
"Consistent with applicable regulations, the company does not have information on specific end purchasers or users of its products. The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product."
However, a company source said its directors could not say for certain where the drug had been exported to through the supply chain.
"British company denies exporting drug used in US execution after Arizona's supplies run dry," by Michael Seamark for the Daily Mail.
Earlier coverage begins with this post; more on the Supreme Court's 2008 ruling in Baze v. Rees, via Oyez. Earlier cover of the 2007 Supreme Court ruling in Schriro v. Landrigan is here.
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